Smith v Chief Executive, Queensland Corrective Services [No 2]
[2025] QSC 38
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- Notable Unreported Decision
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- Smith v Chief Executive, Queensland Corrective Services [No 2][2025] QSC 38
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Smith v Chief Executive, Queensland Corrective Services [No 2][2025] QSC 38
Smith v Chief Executive, Queensland Corrective Services [No 2][2025] QSC 38
SUPREME COURT OF QUEENSLAND
CITATION: | Smith v Chief Executive, Queensland Corrective Services No. 2 [2025] QSC 38 |
PARTIES: | RACHEL SMITH (applicant) v CHIEF EXECUTIVE, QUEENSLAND CORRECTIVE SERVICES (respondent) |
FILE NO: | 3881 of 2024 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 5 March 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 November 2024, and written submissions received 6 December 2024 and 17 December 2024 |
JUDGE: | Sullivan J |
ORDER: | The applicant pay the respondent’s costs of and incidental to the application, to be assessed on a standard basis, up to but not exceeding a maximum of $10,000. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – REGULATED COSTS: GROSS OR FIXED COSTS, LUMP SUM ORDERS OR CAPPING ORDERS AND LIKE MATTERS – POWER TO ORDER – where the respondent was successful in its defence of the application and seeks an order for costs fixed at $10,000 – where the applicant brings an application pursuant to s 49 of the Judicial Review Act 1991 (Qld) seeking an order that each party bear their own costs – where the applicant has a level of impecuniosity and is a prisoner – whether in all the circumstances each party should bear their own costs – whether costs should be fixed or capped pursuant to r 687 of the Uniform Civil Procedure Rules 1999 (Qld). Human Rights Act 2019 (Qld) Judicial Review Act 1991 (Qld), s 49 Uniform Civil Procedure Rules 1999 (Qld), r 681, r 687 Dion Giuseppi Sergi by next friend Aileen Solowiej v Sergi [2012] WASC 18 Foster v Shaddock & Ors [2016] QCA 163 Musgrave v The Central and Northern Queensland Regional Parole Board [2017] QSC 312 |
COUNSEL: | S Holt KC with J Underwood for the applicant S Robb KC with L Kruger for the respondent |
SOLICITORS: | Owens & Associates for the applicant Queensland Corrective Services, Legal Strategy & Services Group for the respondent |
Introduction
- [1]The respondent was successful in its defence of the application. The respondent now seeks its costs, albeit fixed at $10,000.
- [2]In response, the applicant has brought an application pursuant to s 49 of the Judicial Review Act 1991 (Qld) (“JRA”) seeking an order that each party bears their own costs.
- [3]The following points are not in dispute between the parties:
- The standard rule for costs is that costs follow the event, pursuant to r 681(1) of the UCPR.[1]
- That standard rule is subject to the operation of s 49 of the JRA.
- Section 49 of the JRA allows an applicant to seek an order from the court that an opposing party to the review bear its own costs, regardless of the outcome of the proceeding.
- For a private applicant, such as the applicant, the costs application contemplated by ss 49(1)(a) and 49(1)(e) of the JRA may be brought after the substantive determination of the principal application, but before any ruling on costs.
- Accordingly, the costs issue in the present proceeding ought to be determined by reference to the exercise of the relevant discretion of the court contained in s 49(1) of the JRA.
- In exercising that discretion, s 49(2) of the JRA obliges the court to have regard to:
- The financial resources of the applicant.
- Whether the application involves an issue that affects or may affect the public interest, in addition to any personal right or interest of the applicant.
- Whether the proceeding disclosed a reasonable basis for the review application.
Contentions of the parties
- (a)The applicant
- [4]The applicant contends that the discretions in s 49(1) of the JRA ought to be exercised in her favour so that the respondent has to bear its own costs of the proceeding. On the applicant’s case, the basis for the exercise of the relevant discretion may be summarised in the following terms.
- [5]The applicant submits that she has little financial resources such that a costs order would leave her destitute and lacking sufficient funds to pay for essentials (housing, food and clothing) upon being released from gaol.
- [6]I note that an affidavit of the applicant’s solicitor was filed, deposing that the applicant has $25,000 worth of assets.
- [7]It is submitted that the applicant has no ability to earn additional income until her release between 13 July 2029, at the earliest, and 13 July 2031, at the latest. When released, it is submitted that her prospects of obtaining gainful employment are dim, given her criminal history. The applicant has received a 10 year sentence for trafficking in a dangerous drug.
- [8]It is separately submitted that the applicant’s judicial review application involved issues of public interest exceeding her own personal interest. This public interest was said to be the eligibility of female prisoners in Queensland to preserve their ability to have children by freezing their eggs. It is said that the application raised important questions about the human rights of female prisoners and the operation of the Human Rights Act 2019 (Qld) in relation to legislative interpretation.
- [9]It is next submitted that the application had a reasonable basis, even though it did not succeed, and that the application was neither frivolous nor vexatious.
- [10]In terms of authority, reference was made to the decision of Musgrave v The Central and Northern Queensland Regional Parole Board [2017] QSC 312, a decision of her Honour Justice Brown. In that case, it was submitted that Brown J (as her Honour then was) had considered the apparent impecuniosity of the applicant as a basis to order that the respondent bear its own costs, even though the application did not raise any issues of public interest. It is submitted that the applicant is in a stronger position in that she is impecunious, and in addition there are said to be significant public interests involved.
- [11]Support was also sought to be drawn from the decision in Foster v Shaddock & Ors [2016] QCA 163, where the applicant had been unsuccessful in a judicial review decision and had then appealed and lost the appeal. Following the appeal, an order under s 49(1)(e) of the JRA that each party bear their own costs was successful.
- [12]It is submitted the respondent in Foster had conceded the applicant had limited means and the court had held that the case concerned a number of issues of public interest, as well as there being a reasonable basis for bringing the application. It is said that equivalent findings ought to be made here.
- (b)The respondent
- [13]The respondent contends that the applicant pay the respondent’s costs of the application fixed at $10,000. It says so for the following reasons.
- [14]The respondent submits that the evidence does not clearly demonstrate that the applicant is impecunious, but it accepts that the applicant’s ability to generate financial resources whilst in custody is inherently curtailed.
- [15]The respondent submits that the application did not ultimately involve matters of public interest. Whilst it was conceded that the outcome of the application involved matters of real personal interest to the applicant, the respondent contended that the decision itself involved the application of settled principles of construction, including with respect to the way in which the Human Rights Act 2019 informs statutory interpretation.
- [16]In respect of the reasonable basis issue, it was accepted that the issues ventilated by the applicant were not frivolous or vexatious or advanced without a reasonable basis.
- [17]Finally, the respondent identified that in the circumstances of the case it did not now seek that its costs be assessed on a standard basis, but rather sought to recover costs fixed at $10,000, which it said in submissions represented a significant reduction on the disbursements incurred.
- [18]By agreeing to this fixed costs basis, it was submitted that a balance had been struck between the position of the applicant on the one hand and the successful respondent on the other.
- (c)Determination
- [19]I turn first to the financial resources of the applicant. There is evidence before the Court that the applicant is not entirely impecunious. It is deposed to that the applicant has assets worth $25,000. I accept that the applicant has a very limited ability to earn anything whilst incarcerated, but upon her release, the applicant will be some 38 to 40 years of age such that she will have a significant working life before her.
- [20]Whilst I accept that a conviction for a serious criminal offence will be a disadvantage in seeking jobs after the applicant’s release, given her age on release, I do not find that it will prevent her from finding some form of gainful employment on her release.
- [21]Accordingly, I find that the applicant has a level of impecuniosity as she has a small net asset base of $25,000.
- [22]Next, I turn to the public interest issue. I am not satisfied that the application involved issues which affected the public interest. Whilst the application was of real personal interest to the applicant and potentially a number of other female prisoners who may wish to freeze their eggs in the future for use after their release, this personal interest does not equate to a public interest. The application substantively involved the utilisation of settled principles of statutory interpretation, including with respect to the way in which the Human Rights Act 2019 informs statutory interpretation.
- [23]Turning to the next issue, I accept, consistent with the concession made by the respondent, that the application was made on a reasonable basis. The fact that the applicant did not succeed in the application does not preclude me from making this finding in the circumstances of the case.
- [24]Finally, I take into account the fact that that the respondent has requested for its costs to be fixed at $10,000. Whilst the respondent in its submissions said this was significantly less than its disbursements, it has not deposed to this in any affidavit material.
- [25]As a matter of general principle, the fixing of costs under r 687(2)(c) of the UCPR requires some probative evidence in support of the amount sought to be fixed, even when it is such a modest sum.
- [26]However, a similar result may be achieved by incorporating within any costs order a cap on the maximum amount of costs which can be assessed on a standard basis. Rule 687(2)(d) of the UCPR is broad enough to allow the capping of costs in this retrospective fashion,[2] particularly where the party who has the benefit of the costs order effectively consents to such a cap.
- [27]A cap on assessed costs at $10,000 means that the applicant could meet such a costs order from her asset base of $25,000. Unlike Musgrave v The Central and Northern Queensland Regional Parole Board [2017] QSC 312 and Foster v Shaddock & Ors [2016] QCA 163, where the evidence was to the effect that there was no ability to meet the costs order, here the costs order will be able to be met by the applicant, without exhausting entirely the applicant’s relatively small asset base.
- [28]Taking into account all of the matters dealt with above, I will exercise my discretion to make an order that the applicant pay the respondent’s costs of and incidental to the application, to be assessed on a standard basis, up to but not exceeding a maximum of $10,000. This reflects that the applicant has failed in her application and allows for the recovery of some of the respondent’s properly incurred costs, whilst also having regard to the applicant’s level of impecuniosity and the fact that the application was brought reasonably.
- [29]Accordingly, I will dismiss the applicant’s application under s 49(1) of the JRA and make the costs order expressed above.